The Constitution, national cemeteries, and the battle flag of the Confederacy

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On May 19, the U.S. House of Representatives voted to limit the public display of the Confederate flag in national cemeteries, while still allowing families to place small Confederate flags by individual graves.

Congressman Scott Garrett (R-NJ 5th Dist.) voted against the measure, explaining in a statement that “while I strongly disagree with what the Confederate flag stands for, we must protect the First Amendment — even when it’s unpopular.” The congressman’s position fails not only the standard of justice, but also the Constitution itself.

In an opinion piece published in the Bergen Record on May 23, Alfred P. Doblin suggests that if Congressman Garrett defends the right to fly a Confederate flag in a national cemetery, then he also would defend the right to fly a swastika. That analogy is apt. Both the Confederate and the Nazi flags were used to divide nations, to ostracize, and to motivate and inflame prejudice, hatred, and racism. And while you might (with difficulty) contest the motivations of those who saw — and see — themselves represented by those flags, we all can agree on the effect of those symbols upon those they exclude, whether they are African Americans or Jews.

The Supreme Court considered this question last year. The Texas Department of Motor Vehicles denied a specialty license plate design that featured the Confederate flag, and it was sued by the Sons of Confederate Veterans, citing its First Amendment-protected right of free speech. The Supreme Court limited that right in Walker v. Sons of Confederate Veterans, a decision that was handed down the very morning after the shooting and execution of worshippers in a Charleston AME church last June.

I gave a sermon against racism last Rosh Hashanah, and celebrated the Supreme Court’s decision. I commended the court majority for understanding that it was time for the United States of America to turn the page on its bloody history of racism and prejudice. If the State of Texas was ready to turn that page, then a group of lawyers in Washington should be able to figure out how to support it.

The court distinguished between private speech, which is protected by the First Amendment, and government speech, which the government can use to regulate and limit “because it represents its citizens and it carries out its duties on their behalf.” I offered the following hypothetical to my congregation: Imagine if New Jersey were to approve a license plate with a swastika on it. Imagine if we had to park next to a car with such a plate every day. I would be haunted not only by the fact that the owner of that vehicle wants me in a death camp, but also by the fact that the state, which should represent me and protect me, instead is protecting his hatred.

Freedom of speech, even of hateful speech, indeed is protected by our Constitution. But the Constitution also means to protect its citizens from hatred and persecution. If a license plate is a domain of government speech, then all the more so ought the sacred ground of our national cemeteries be spaces of sanctuary and security from racism and bigotry. The court recognizes this limitation to the First Amendment. Our representative in Congress does not. Thankfully, the measure passed despite his opposition, and the determinative reading of the First Amendment remains with the Court.

I like to point out that if you are a neo-Nazi Holocaust denier, then the Promised Land is the United States of America, where your right to teach and publish is guaranteed. In Germany, by contrast, Holocaust denial is a federal crime. The only place for Holocaust deniers in the Fatherland is prison.

What an irony it is that only we, the victors of the war, will protect the rights of neo-Nazis. But we understand that ours is a land that protects freedoms, even when we don’t like them. We understand that our soldiers fight to protect the freedoms that our laws guarantee. But we also want to build a society based not on war but on peace, rooted not in ignorance but in knowledge, and founded not on hatred of the other but love of all.

Thinking about our national cemeteries after another Memorial Day, I am grateful for the congressional effort to seek that careful balance that justice demands.

About the Author

David J. Fine is rabbi of Temple Israel and Jewish Community Center in Ridgewood, NJ, and president of the New Jersey Rabbinical Assembly. He received his PhD from the City University of New York in 2010, and his rabbinic ordination from the Jewish Theological Seminary of America in 1999.